Indiana Law Journal
Volume 73 | Issue 3
Article 8
Summer 1998
Oliphant and Tribal Criminal Jurisdiction over
Non-Indians: Asserting Congress's Plenary Power
to Restore Territorial Jurisdiction
Geoffrey C. Heisey
Indiana University School of Law
Follow this and additional works at: http://www.repository.law.indiana.edu/ilj
Part of the Indian and Aboriginal Law Commons, and the Jurisdiction Commons
Recommended Citation
Heisey, Geoffrey C. (1998) "Oliphant and Tribal Criminal Jurisdiction over Non-Indians: Asserting Congress's Plenary Power to
Restore Territorial Jurisdiction," Indiana Law Journal: Vol. 73: Iss. 3, Article 8.
Available at: http://www.repository.law.indiana.edu/ilj/vol73/iss3/8
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Oliphant and Tribal Criminal Jurisdiction
over Non-Indians: Asserting Congress's
Plenary Power to Restore Territorial
Jurisdiction
GEOFFREY C. HEISEY*
INTRODUCTION
"WARNING WARNING NO OUTSIDE WHITE VISITORS ALLOWED
BECAUSE OF YOUR FAILURE TO OBEY THE LAWS OF OUR TRIBE AS
WELL AS THE LAWS OF YOUR OWN. THIS VILLAGE IS HEREBY
CLOSED."'
For nearly twenty years, tribal courts and law-enforcement authorities have
been in the unenviable position of lacking criminal jurisdiction over non-Indians
who live on or visit Indian reservations. In Oliphant v. Suquamish Indian Tribe,2
the Supreme Court negated tribal jurisdiction over non-Indian defendants who
commit crimes in Indian country. Commentators in the area of Native- American
law have attacked the decision,3 but the attacks have fallen on the deaf ears of the
Supreme Court. In fact, in the past twenty years, the Burger and Rehnquist
Courts have charted a steady course away from the congressional policy of
Indian self-determination in many areas of Indian law including criminal
jurisdiction. This is somewhat of a historical role reversal for the Court, which
has been instrumental in protecting the rights of Native Americans since Chief
Justice Marshall penned his famous trilogy of Indian-law cases between 1823
* J.D. Candidate, 1998, Indiana University School of Law-Bloomington; B.A., 1993,
Indiana University. Special thanks to Professor Craig Bradley and extra special thanks to
Professor David Williams who helped me put out all of the little "brush fires" in this paper, and
whose Federal Indian Law class was the inspiration for this Comment.
1. Sign erected at the entrance to the Hopi village of Oraibi, Arizona, by the tribal leader
Kikmongwi, Mina Lansa.
2. 435 U.S. 191 (1978).
3. See generally Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal:
Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 MINN. L. REv. 609
(1979) (arguing that the decision deprived American Indians of self-governing authority);
Allison M. Dussias, Geographically-Basedand Membership-Based Views of Indian Tribal
Sovereignty: The Supreme Court's Changing Vision, 55 U. Prrr. L. REv. 1 (1993); Ralph W.
Johnson & Berrie Martinis, ChiefJustice Rehnquist and the Indian Cases, 16 PUB.LAND L.
REv. 1 (1995) (asserting that Chief Justice Rehnquist's decision limited tribal sovereignty);
Peter C. Maxfield, Oliphant v. Suquamish Tribe: The Whole Is Greaterthan the Sum of the
Parts, 19 J. CONTEMP. L. 391 (1993) (arguing that the decision is grounded on faulty
assumptions); Paul S. Volk, Note, The Legal Trail of Tears: Supreme CourtRemoval of Tribal
CourtJurisdictionover Crimes by andAgainst Reservation Indians, 20 NEW ENG. L. REv. 247
(1984-1985) (criticizing the Court's decision for weakening Indian sovereignty).
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and 1832.' Historically, Congress has not treated Native Americans as favorably.
Through policies of conquest, removal, assimilation, termination, and treaty
abrogation, Congress until very recently has had a mostly adversarial relationship
with the tribes.5 However, beginning in 1934 and continuing to the present,
Congress has promulgated a policy of tribal self-determination.6 While
commentators have advocated overruling Oliphant,they have largely ignored the
congressional failure to rectify, through legislation, the injustice that the decision
created. Critics continue to criticize the Court's decision and attack its legal
arguments as myopic and contrived.7 The Oliphant decision and other recent
cases clearly indicate the Court's intent to undermine Congress's policy of selfdetermination for American Indians. 8
The solution to the problems that Oliphant has created must therefore come
from another source. It is time for Congress to exercise its plenary power over
Indian affairs vested in it by the Constitution and confirmed by Chief Justice
Marshall over a century and a half ago.9 It is time for Congress to reverse the
Oliphantholding and recognize this jurisdiction over offenses committed by nonIndians in Indian country. In Parts I and II of this Comment, I will attempt to
briefly revisit the historical background crucial to the conclusion that Congress
can and should change the law created by the Oliphantdecision. In Part III, I will
outline the numerous arguments criticizing the Oliphant decision. Finally, in Part
IV, I will suggest a course of action Congress might follow in restoring criminal
jurisdiction to the tribes.
4. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1(1831); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
5. See FELIX S. COHEN, FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 49
(Rennard Strickland et al. eds., 1982).
6. See id. at 147, 180.
7. Peter Maxfield argues:
The Court attempts to substantiate its finding[s] ... with a long list of authorities
that supposedly demonstrate that the Courts, the Congress, and the Executive
have long assumed that Indian tribes lacked... [criminal] jurisdiction [over nonIndians].... In fact, these authorities did not rely on solicitude for non-Indian
rights, but rather indicate that the solicitude that the OliphantCourt used as the
foundation for its finding simply did not exist.
Maxfield, supra note 3, at 440 (emphasis added).
8. See generally County of Yakima v. Confederated Tribes and Bands of the Yakima
Indian Nation, 502 U.S. 251 (1992) (holding that the county may impose an ad valorem tax on
reservation land owned by members); Duro v. Reina, 495 U.S. 676 (1990) (holding that an
Indian tribe cannot exercise criminal jurisdiction over a defendant of diverse tribal affiliation);
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (holding that the state may
impose severance taxes on oil and gas produced on the Indian reservation even though the tribe
already taxed that production, thereby reducing the value of a lease on the reservation).
9. See Worcester, 31 U.S. (6 Pet.) at 561.
1998]
TRIBAL CRIMINAL JURISDICTION
1053
I. OLIPHANT AND ITS AFTERMATH
The Oliphantcase arose from the enforcement of the Suquamish Indian Tribe's
Law and Order Code against two non-Indian defendants, Mark David Oliphant
and Daniel B. Belgarde.' 0 Oliphant was arrested during an annual Suquamish
celebration and charged with assaulting a tribal police officer and resisting arrest.
Belgarde was arrested for a high-speed chase with tribal police that ended when
Belgarde collided with a tribal patrol car. He was charged under the Law and
Order Code with recklessly endangering another person and injuring tribal
property. The two men applied for a writ of habeas corpus under the Indian Civil
Rights Act of 1968" arguing that the tribal court did not have jurisdiction. The
district court and the U.S. Court of Appeals for the Ninth Circuit both upheld
tribal jurisdiction, but the Supreme Court held that Indian tribal courts have no
criminal jurisdiction over non-Indians.' 2 Unfortunately, the Supreme Court did
not consider whether tribal police retain the authority to arrest non-Indians for
offenses committed on Indian country. This issue remains uncertain. Assuming
tribes have retained this power, tribal courts lack the requisite jurisdiction to
punish the offenders who are arrested.
A. The TripartiteDivision ofJurisdiction
On Indian country there is a tripartite division of criminal jurisdiction that has
evolved during the long relationship between the Indian tribes and the United
States. Federal, state, and tribal courts claim varying degrees of criminal
jurisdiction based on different concepts of sovereignty. 3 By eliminating tribal
criminal jurisdiction over non-Indians, Oliphant removed from the tripartite
10. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 194 (1978).
11. 25 U.S.C. §§ 1301-1303 (1994). Section 1303 states: "The privilege of the writ of
habeas corpus shall be available to any person, in a court of the United States, to test the
legality of his detention by order of an Indian tribe."
12. See Oliphant,435 U.S. at 194-95.
13. See Volk, supranote 3, at 250-53.
The federal claim to jurisdiction over crimes committed by and against Indians
on the reservations is based on: (1) constitutional treatymaking and commerce
powers; (2) federal "trusteeship" over Indian lands; and (3) federal statutes
conferring such criminal jurisdiction on federal courts.
The two bases for state jurisdiction over offenses committed on Indian territory
are premised on inherent sovereignty over state land and state citizens [pertaining
to crimes involving non-Indians only], as well as federal grants of such
jurisdiction in statutes such as Public Law 280 and its related acts [pertaining to
interracial crimes involving non-Indian defendants].
Tribal claims to jurisdiction over crimes occurring on Indian territory are based
on early treaties, as well as case law recognizing inherent Indian sovereignty over
Indian territory and people under the reservation system.
aId
(footnotes omitted). For more on Public Law 280, see infra notes 29-31 and accompanying
text.
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system the most practical
and logical body for administering criminal justice on
4
the reservations.1
The federal government is able, and is usually willing, to prosecute the major
crimes enumerated in the Indian Major Crimes Act when they occur on Indian
land. 5 However, despite having the authority to prosecute interracial minor
crimes, 6 the federal court system is far too encumbered to prosecute the
numerous minor crimes associated with life on the reservation. States, on the
other hand, have quite limited authority on reservations, 7 and they are frequently
unwilling to expend the money or resources necessary to exercise what little
authority they have. 8 States receive little or no revenue from tribal sources and
are reluctant to allocate scarce state funds to enforce tribal laws on the
reservation. Additionally, state law-enforcement agencies are often too far
removed from the reservations to be effective in preventing everyday crimes
committed by non-Indians. 9 Therefore, due to the gaps left by federal and state
courts in prosecuting non-Indian offenders, many minor crimes committed on the
reservation by non-Indians go unpunished. These include offenses such as
drunken or reckless driving, petty theft, simple assault, traffic offenses,
vandalism, littering, and even parking violations.20
14. See Stephen M. Johnson, Note, Jurisdiction:CriminalJurisdictionandEnforcement
Problems on Indian Reservations in the Wake of Oliphant, 7 AM. INDIAN L. REv. 291, 292
(1979).
15. The Indian Major Crimes Act, 18 U.S.C. § 1153 (1994), reads:
(a) Any Indian who commits against the person or property of another Indian or
other person any of the following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to
commit murder, assault with a dangerous weapon, assault resulting in serious
bodily injury (as defined in section 1365 of this title), an assault against an
individual who has not attained the age of 16 years, arson, burglary, robbery, and
a felony under section 661 of this title within Indian country, shall be subject to
the same law and penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section that is not defined and
punished by Federal law in force within the exclusive jurisdiction of the United
States shall be defined and punished in accordance with the laws of the State in
which such offense was committed as are in force at the time of such offense.
16. Title 18 U.S.C. § 1152 reads:
Except as otherwise expressly provided by law, the general laws of the United
States as to the punishment of offenses committed in any place within the sole and
exclusive jurisdiction of the United States, except the District of Columbia, shall
extend to the Indian country.
This section shall not extend to offenses committed by one Indian against the
person or property of another Indian, nor to any Indian committing any offense
in the Indian country who has been punished by the local law of the tribe, or to
any case where, by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively.
17. See Volk, supra note 3, at 253.
18. See id at 279.
19. See id. at 273-74.
20. See id. at 274.
1998]
TRIBAL CRIMINAL JURISDICTION
1055
B. Consequences of the TribalCourts' Lack of Criminal
Jurisdictionover Non-Indians
The Oliphantdecision is an affront to both tribes and tribal self-determination
that leaves few options for controlling the conduct of non-Indians who live on
or visit the reservation. It also decreases non-Indians' respect for tribal authority,
and generally encourages lawlessness by non-Indians while they are in Indian
country.2 Furthermore, Oliphant leaves the tribes powerless to protect tribal
property, interests, and members from the criminal conduct of non-Indians. In
fact, crime statistics for all the reservations are compiled through the Native
American Police Academy, but there is no incentive to keep statistics on crimes
committed by non-Indians since tribal courts are powerless to punish these
criminals.22 The only statistics available on non-Indian crime would have to be
collected from the few local jurisdictions that have arrangements with the tribes
to prosecute non-Indian offenders who commit crimes on the reservation.' This
lack of crime statistics results from the tribes' powerlessness and it shows the
state of disarray in the current system. It is necessary for the tribes, as it is for
any territorially based sovereign, to have the power to handle these problems
through their tribal police and in their tribal court systems.24 Ultimately, the
Court's decision in Oliphant jeopardizes the relationship between Indians and
non-Indians. Tribal powerlessness leads to frustration in coping with the rising
problem of non-Indian crime on the reservation; consequently, tribes may react
with anger, dislike, and mistreatment of non-Indians who reside on or visit the
reservation. Conversely, non-Indians react to the tribes with what might be a
fundamental lack of respect and even contempt for impotent tribal authorities.25
Because they lack criminal jurisdiction over non-Indians, tribes and tribal
members are left with the four following alternatives.26 The first is to remove or
exclude non-Indian offenders from the reservations. The next is to employ selfhelp methods against non-Indian offenders. Some tribal entities have expressed
the willingness to take the law into their own hands in an effort to stem the tide
of non-Indian offenders.27 Obviously this situation is repugnant to both the
interests of the United States and the tribal judicial systems, and can be highly
destructive to the local communities. Another alternative is to rely on federal
authorities that are too understaffed to be truly effective in solving the minorcrime problems on the reservations. It is unrealistic to expect this alternative to
have any real effect on the tribes' predicament in controlling the criminal
21. See id.
22. See Telephone Interview with Craig Jones, Native American Police Academy (Mar.
1997).
23. See id.
24. See Dussias, supranote 3, at 5 & n.13.
25. See Johnson, supranote 14, at 293.
26. See Volk, supranote 3, at 275.
27. See Johnson, supranote 14, at 293.
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conduct of non-Indians.2" Finally, Public Law 28029 gives the necessary federal
consent to state assumption of criminal and civil jurisdiction over Indian
territory, provided the tribe consents to such an assumption of jurisdiction."
However, both the states and the tribes have found Public Law 280 too draconian
and have been unwilling to either assume or consent to an assumption of such
jurisdiction.3 1
II. INDIAN-LAW BACKGROUND AND CONGRESSIONAL
POLICY SWINGS
A proposed solution to a problem in Indian law must be cast against the basic
framework governing the relationship between the tribes and the United States.
It is therefore necessary to examine the Marshall trilogy, the Indian-law canons
of construction, and congressional policy swings in the area of Indian affairs
before fashioning such a solution. All that is required here is a modest
illustration of congressional power over the tribes and the traditional judicial
justifications of that power.
A. The MarshallTrilogy
The Marshall trilogy is a series of three Supreme Court cases decided between
1823 and 1832. These cases were the first Supreme Court cases to consider
Indian-law issues, and they established the canons of Indian law that courts have
followed for nearly 150 years.
1. Johnson v. M'Intosh
Since the birth of the United States, there has been concern over the scope of
Indian title and sovereignty. Because the United States developed from
colonialism and conquest, these concepts have been and will continue to be
intertwined with the legitimacy of this nation despite the fact that the
Constitution rejects the imperialist system from which these concepts emerged.
Early on, the question remained as to the scope of Indian title and sovereignty in
relation to that of the fledgling United States.
In 1823, Chief Justice Marshall was forced to reconcile these fundamental
contradictions in Johnson v. M'Intosh.32 Chief Justice Marshall looked to solve
this problem through the principle of discovery. The theory he espoused was that
discovery by a European sovereign gave that sovereign title against all other
28. See id at 300 ("[A] Department of Justice report had itself ascertained that [even before
Oliphant] United States Attorneys had declined to prosecute 75 percent of the Indian cases
presented to them.").
29. Act of Aug. 15, 1953, Pub. L. No. 83-280, sec. 2, 67 Stat. 588, 588 (codified as
amended at 18 U.S.C. § 1162(a) (1994)).
30. See Volk, supra note 3, at 252; see also Johnson, supra note 14, at 312.
31. See Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over
Reservation Indians,22 UCLA L. REv. 535, 552-53 (1975).
32. 21 U.S. (8 Wheat.) 543 (1823).
1998]
TRIBAL CRIMINAL JURISDICTION
1057
European governments and that actual possession consummated such title.33 This
right, in turn, gave the discovering nation the sole right to acquire land from the
natives and settle on it.34 Implicit in this arrangement was the acknowledgment
that the natives were sovereign with the right to possess and use the land as they
saw fit, subject only to certain limits in alienating the land.35
Marshall then applied this theory to substantiate Great Britain's claims to the
territories it acquired in the New World,36 and emphasized that in the treaty
ending the Revolutionary War, the rights of Great Britain attained
by means of
37
discovery were ceded to the United States through conquest.
Finally, Marshall asserted that with discovery came both the exclusive right to
extinguish the Indian right of occupancy by means of purchase or conquest and
also the right to determine the degree of sovereignty held by the Indians.?' In
conclusion, Marshall proclaimed:
The British government, which was then our government, and whose rights
have passed to the United States, asserted title to all the lands occupied by
Indians, within the charter limits of the British colonies.... These claims
have been maintained and established as far west as the river Mississippi, by
the sword ....
It is notfor the Courts of this country to question the validity
of this title ....9
For Marshall to hold otherwise would have raised doubts about the legitimacy of
the United States' claim to the lands within its borders.
2. Cherokee Nation v. Georgia
Eight years after deciding Johnson,the Supreme Court was again called on to
decide a case that would greatly influence the concept of tribal sovereignty in
American jurisprudence. This time the issue was whether the Cherokees
constituted a foreign state under the Constitution with standing to bring their
case before the Supreme Court as a foreign state.4" In holding they did not,
Marshall focused on the relationship between the United States and the Indian
tribes. He categorized the Indian tribes as "domestic dependent nations," and as
a people "in a state of pupilage" whose relationship with the United States
"resembles that of a ward to his guardian."'" He based this decision on the
language of the Constitution, particularly the Commerce Clause.42 He reasoned
33. See id. at 573.
34. See id.
35. See id. at 574.
36. See id. at 576.
37. See id. at 584.
38. See id. at 587.
39. Id at 588-89 (emphasis added).
40. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831).
41.Id. at 17.
42. See Philip P. Frickey, MarshallingPastand Present: Colonialism, Constitutionalism,
and Interpretationin FederalIndian Law, 107 HARV. L. REV. 381, 392 (1993); see also
Cherokee Nation, 30 U.S. (5 Pet.) at 18 ("[C]onsiderable aid is furnished by that clause in the
eighth section of the third article, which empowers Congress to 'regulate commerce with
foreign nations, and among the several states, and with the Indian tribes."') (emphasis added).
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that the language of the Commerce Clause served both to distinguish the tribes
from both foreign nations and states, 43 and also to confirm the sovereign status
of the tribes."
To summarize, even though the Court held that the Cherokee had no standing
to bring their case before the Supreme Court, Marshall still managed to establish
that Indian tribes are domestic, dependent nations rather than foreign nations,
confirm their sovereign status through the language of the Constitution, and
impose a fiduciary duty on the United States to deal with the tribes as that of a
guardian to a ward. The Indians, he wrote, "look to our government for
protection; rely on its kindness and its power; appeal to it for relief to their
wants; and address the president as their great father."4
3. Worcester v. Georgia
Before dismissing Cherokee Nation, Marshall mused, "[I]f courts were
permitted to indulge their sympathies, a case better calculated to excite them can
'
scarcely be imagined."46
The following year such a case arose and Marshall had
the opportunity to indulge the sympathies alluded to in Cherokee Nation. Just as
in Cherokee Nation, the plaintiff prayed for relief against the State of Georgia,
but this time the plaintiff was a United States citizen with standing to bring the
case before the Supreme Court.4" The issue before the Court was whether
Georgia law applied on the Cherokee reservation.48 In determining that state law
did not apply to Indian affairs, Marshall picked up where he left off in Johnson
with the principle of discovery, but expanded the relationship between the United
States government and the tribes.
According to Marshall, when the King of England chartered the colonies, the
charters conveyed title only to the land the Indians were willing to sell to the
crown.49 He then wrote: "[O]ur history furnishes no example.., of any attempt
on the part of the crown to interfere with the internal affairs of the Indians,
farther than to keep out the agents of foreign powers . . . ."'0 Therefore, the
United States government was in the position to further the relationship with the
tribes in a sovereign-to-sovereign relationship, but the tribes' internal
government was their own affair." State law was necessarily preempted by this
relationship. 2
43. See Frickey, supra note 42, at 392.
44. See Cherokee Nation,30 U.S. (5 Pet.) at 19 ("We perceive plainly that the constitution
in this article does not comprehend Indian tribes in the general term 'foreign nations;' not we
presume because a tribe may not be a nation, but because it is not foreign to the United
States.").
45.Id. atl6.
46. Id. at 15.
47. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
48. See id. at 541.
49. See id. at 545-47.
50. Id. at 547.
51. See Frickey, supranote 42, at 396-97.
52. See id. at 397.
1998]
TRIBAL CRIMINAL JURISDICTION
1059
Furthermore, the role played by the federal government was outlined in the
Constitution. Chief Justice Marshall concluded this by looking to the war power,
the treaty power, and the Indian Commerce Clause which, when read together,
enumerate the power to administer the relationship with the tribes. 3 In
establishing Congress's plenary power over Indian affairs, he wrote: "The whole
intercourse between the United States and [the Indians], is, by our constitution
and laws, vested in the government of the United States." 4 This language and the
rest of the Marshall trilogy was adopted and its place in Indian law firmly
established in UnitedStates v. Kagama, s which confirmed the plenary power of
Congress over Indian affairs, the domestic, dependent status of the tribes, and the
guardian-ward relationship. 6
B. Canons of Construction
In the ongoing relationship between the United States and the Indian tribes,
several important canons of construction have developed for interpreting treaties
with the tribes and statutes governing Indian affairs. For the most part, these
canons have been effective, but a review of Oliphantwill show that the more
recent trend of the Supreme Court is to ignore them.
As early as Worcester v. Georgia,the Court addressed the issue of construing
treaties with the Indians. Chief Justice Marshall read ambiguous treaty language
in favor of the tribes, writing that it is not "reasonable to suppose, that the
Indians, who could not write, and most probably could not read, who certainly
were not critical judges of our language, should distinguish [the meaning of
treaty language]."" Since the Indians could not be expected to understand terms
of art in treaty writing, Marshall gave them the benefit of the doubt and read
treaties as he thought the Indians would have understood them given the actual
situation under which the treaties were signed."8
Since then, courts have generally "required that treaties be liberally construed
to favor Indians, that ambiguous expressions in treaties must be resolved in favor
of the Indians, and that treaties should be construed as Indians would have
understood them." 9 Furthermore, it is generally presumed that treaty rights
cannot be abrogated unless Congress shows a "clear and plain" intent to do so.6"
Statutes, agreements, and executive orders also have canons of construction
favorable to the Indians. They are to be construed liberally to favor the
53. See Worcester, 31 U.S. (6 Pet.) at 558-59.
54. Id. at 561.
55. 118 U.S. 375 (1886).
56. See id. at 383-84 ("From their very weakness and helplessness, so largely due to the
course of dealing of the Federal Government with them and the treaties in which it has been
promised, there arises the duty of protection, and with it the power.").
57. Worcester, 31 U.S. (6 Pet.) at 552.
58. See id. at 552-53 ("If the term would admit no other signification, which is not
conceded, its being misunderstood is so apparent, results so necessarily from the whole
transaction; that it must, we think, be taken in the sense in which it was most obviously used.").
59. COHEN,supranote 5, at 222 (citations omitted).
60. See id. at 222-23.
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establishment of Indians' rights. 6' Just as congressional action is required for
treaty abrogation, Congress can only abrogate Indian rights by issuing a "clear
and plain" statement of its intent.62 The purpose of these canons is to protect the
fiduciary relationship between the United States and the tribes,63 and courts
usually adhere to them. However, some courts, such as the Oliphant Court,
abandon them completely and apply their own standards, to the detriment of
tribal sovereignty.
C. CongressionalPolicy Swings
To understand Congress's historical relationship with the tribes, its use of
congressional plenary power over the tribes, and the reasons commentators may
be reluctant to look to Congress to reverse the Oliphant holding, it is necessary
to briefly summarize congressional policy swings in the area of Indian affairs.
1. Treaties (1776-1871)
Since our country's inception, the United States government has approached
the tribes as sovereign nations.64 In dealing with the Indians, the United States
engaged in a treaty-making process in order to settle disputes, accept cessions of
land, end wars, prevent wars, and initiate and maintain trade agreements. 65 This
policy continued until 1871 when the House of Representatives refused to
appropriate funds for new treaty obligations. The Senate capitulated by calling
an end to making any new treaties with the tribes.6 6 This policy, which lasted for
100 years, clearly represented the belief that the tribes were to be approached in
a sovereign-to-sovereign relationship.
2. Removal (1830-1850s)
In 1830 President Andrew Jackson signed into law the Indian Removal Act
which allowed the President to remove Indian tribes living east of the Mississippi
to lands west of the Mississippi. 67 By the terms of the Act, such removal was to
be an exchange in which the President guaranteed that the new land was to
belong to the tribes' heirs and successors forever.68 Often such removal was done
forcibly, such as the infamous "Trail of Tears" march imposed upon the
61. See id.at 224.
62. See id.
63. See id. at 224-25.
64. See Worcester v. Georgia, 30 U.S. (6 Pet.) 515, 559 (1832) ("The Indian nations had
always been considered as distinct, independent political communities, retaining their original
natural rights .... The very term 'nation,' so generally applied to them, means 'a people
distinct from others."') (emphasis added).
65. See DAVID H. GErCHEsETAL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 83 (3d
ed. 1993).
66. See id. at 179.
67. See COHEN, supra note 5, at 81.
68. See Indian Removal Act, ch. 148, 4 Stat. 411 (1830).
1998]
TRIBAL CRIMINAL JURISDICTION
1061
Cherokees when they were removed from Georgia to Oklahoma. To encourage
voluntary relocation, government officials told the Indians that west of the
69
Mississippi they would be free of state and federal interference for all time.
3. Reservations (1850s-1887)
As non-Indians expanded westward, the federal government was again faced
with Indian and non-Indian conflicts. In the mid-1850s, the United States
established the reservation system.7" This policy again displaced Indians by
relocating them onto much smaller parcels of land than those originally promised
to them. Congress only intended to sustain the reservations until the Indians
could adapt to an agrarian existence. The reservation system arose because the
Commissioner of Indian Affairs felt removal had failed in three major areas.
First, moving the Indians around so much prevented them from becoming settled
and "civilized." Also, the government had given the Indians too much land to
promote farming and the concept of individually owned property. Finally, the
Commissioner reported that the annuities which Congress provided to the tribes
lead to indolence by the Indians and fraudulent behavior by non-Indians." The
goal of the reservation policy was to obtain Indian landholdings and, at the same
time, provide a buffer zone between Indians and non-Indians while the
72
government tried to incorporate the Indians into the non-Indian way of life.
4. Assimilation (1887-1934)
As early as 1819 assimilationist policy was considered by some members of
Congress to be a viable option for Indian affairs, 73 but it did not become fullblown U.S. policy until the Dawes Act of 1887 (more commonly known as the
General Allotment Act).74 The purpose of the allotment era was to turn the
Indians into individual landowners by creating a system that first parceled out
75
reservation land to individual tribal members and then sold off the surplus. The
goal of the allotment system was that the tribes would cease to exist and tribal
members would be assimilated into non-Indian society.76 Before the
assimilationist policy was complete, the congressional climate changed again,
and this led to the enactment of the Indian Reorganization Act of 1934, which
69. See Johnson & Martinis, supra note 3, at 3 & n.6.
70. See COHEN, supranote 5, at 124.
71. See id (citing COMMIssIONER OF INDiAN AFFAIRS, ANNUAL REPORT, S. ExEC. Doc. No.
35-1, at 354 (1858)).
72. See id. at 125.
73. See Act of Mar. 3, 1819, ch. 85, § 1, 3 Stat. 516, 516 (codified as amended at 25 U.S.C.
§ 271 (1994)) (conferring power in the President to employ "capable" and "moral" instructors
for Indians).
74. Act of Feb. 8, 1887, ch. 199, 24 Stat. 388 (codified as amended at25 U.S.C. §§ 331358).
75. See John W. Ragsdale, Jr., Indian Reservationsandthe Preservationof Tribal Culture:
Beyond Wardship to Stewardship, 59 UMKC L. REV. 503, 510-13 (1991).
76. See COHEN, supra note 5, at 130.
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froze all allotments. Unfortunately, by the time of the enactment, the Indian
tribes had already lost two-thirds of their landholdings as a result of the allotment
process."
5. Self-Determination (1934-Present)
The Indian Reorganization Act ushered in an era of self-determination for the
tribes. Under the Indian Reorganization Act, tribes began to adopt constitutions
patterned after the U.S. Constitution, enhanced their economic development,
focused on education, and developed systems by which to govern themselves.78
Self-determination both then and now is premised on the belief that the tribes are
the "basic governmental units of Indian policy," and that assimilation is an
affront to the Indians' civil rights.79 The current state of congressional policy
toward the Indians remains one of self-determination.
6. Termination (1953-1961)
A brief eight-year glitch in self-determination policy occurred in the 1950s.
Congress set the termination policy by adopting House Concurrent Resolution
108 in 1953. Resolution 108 terminated specific tribes' status as wards of the
government. It stemmed from Congress's increasing dissatisfaction with the
Indian Reorganization Act, and led to the liquidation of a number of Indian tribes
and reservations.8" One hundred-nine tribes were terminated under Resolution
108,81 before a public announcement in 1961 officially ended the termination
policy.82 Many of the terminated tribes have since been reconstituted, 3 and
Congress is now advocating self-determination again as its official policy toward
the tribes.
III.
ATTACKING OLIPHANT
In the 1978 Oliphantdecision, the Supreme Court held that tribal courts have
no jurisdiction over crimes committed on Indian country by non-Indians.84
Oliphantis a bad decision, laced with unsupported conclusions and tainted by
judicial activism. Beginning with Burger, and continued by Rehnquist, the
Supreme Court has implemented an agenda against the sovereignty of the Indians
whenever that sovereignty conflicts with the interests of non-Indians.8" The result
77. See Readjustment ofIndian Affairs: Hearings on H.R. 7902 Before the House Comm.
on IndianAffairs, 73d Cong. 16-18 (1934) [hereinafter Hearings](prepared memorandum of
John Collier).
78. See Johnson & Martinis, supra note 3, at 4-5 & nn.21-25.
79. COHEN, supra note 5, at 180-81.
80. See id.at 152, 173-74.
81. See Johnson & Martinis, supra note 3, at 4.
82. See id. at 4 n.20.
83. See id.
84. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
85. See Johnson & Martinis, supra note 3, at 1.
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TRIBAL CRIMINAL JURISDICTION
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has been a drastic blow to Indian sovereignty, particularly in Oliphantwhere the
Court unceremoniously eliminated the inherent territorial sovereignty of the
Indians that had been in place since colonial times.
Historically, the only way to divest the tribes of their territorial sovereignty
was for Congress to expressly take it. 6 The OliphantCourt found two new ways
to divest tribes of their sovereign powers. The first is to find an "unspoken
assumption" of Congress that the tribes have lost their sovereign power.17 The
second is to find that the tribes have implicitly lost their sovereign powers due
to their status as domestic, dependent nations. 8 The following analysis shows
that neither of these new theories is entirely sound or very well supported.
A. The "Unspoken Assumption" Theory
In Oliphantthe Court implemented a new standard to determine the point at
which tribal powers could be abrogated. Under the old canon, tribal powers could
only be abrogated if Congress "clearly and plainly" stated its intent to do so.8 9
The Court admitted that no treaty or statute expressly deprived tribes of criminal
jurisdiction over non-Indians, 0 and, under the old canon, the tribe would retain
this power. However, the Court reasoned that tribal powers of self-government
remain intact unless the Court can find either an implicit congressional intention
to take them away,9' or that tribal courts had implicitly lost them due to their
status as domestic, dependent nations. 92 The Oliphant Court found the latter to
be true, a holding which contradicts all of the canons of Indian law discussed in
Part II of this Comment. The authorities cited are not persuasive enough to
conclude that the tribes lost criminal jurisdiction over non-Indians merely
because of their dependent status.
The Court supported its reasoning by giving weight to an "unspoken
assumption," manifested by congressional acts, that Congress took the tribes'
jurisdiction over non-Indians away. The Court conjured this assumption up from
congressional silence, 93 invalid statutes,94 obscure opinions of the Attorney
General95 and Solicitor of the Department of the Interior,96 a 1960 Senate
report, 97 and suspect references to prior case law. 9 However, examination of
these sources shows (1) that the "unspoken assumption" is more than likely a
86. See COHEN, supra note 5, at 241-42.
87. Oliphant,435 U.S. at 197, 203.
88. See id. at 206-10.
89. COHEN, supranote 5, at 224.
90. See Oliphant,435 U.S. at 204.
91. See Johnson & Martinis, supranote 3, at 12.
92. See Oliphant,435 U.S. at 203.
93. See id. at 206-10.
94. See id. at 201-02 (citing H.R. REP. No. 23-474, at 18, 36 (1834)).
95. See id at 199 (citing 7Op. Att'y Gen. 174 (1855), and 2Op. Att'y Gen. 693 (1834)).
96. See id at 201 & n. I1(citing Criminal Jurisdiction of Indian Tribes over Non-Indians,
77 Interior Dec. 113 (1970)).
97. See id. at 204-06 (quoting S. REP. No. 86-1686, at 2-3 (1960)).
98. See id. at 204 (citing In re Mayfield, 141 U.S. 107 (1891)); id.at 199-201 (citing Ex
parte Kenyon, 14 F. Cas. 353 (C.C.W.D. Ark. 1878) (No. 7720)).
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manifestation of a preference of Oliphant'sauthor that such conflicts be resolved
in favor of federal and state government99 rather than tribal sovereignty, and (2)
that imparting this same intent to Congress is tenuous at best.
The Oliphant court relied upon the Trade and Nonintercourse Acts 0 as one
basis for finding this "unspoken assumption." Here the Court reasoned that
federal jurisdiction given in the Acts was meant to preempt tribal jurisdiction
over non-Indians.'0 ' The problem with this is that, in Oliphant,the Court's reason
for denying criminal jurisdiction over non-Indians rested on the theory that the
federal government must protect non-Indians from Indians. 2 However, the
Trade and Nonintercourse Acts were actually enacted to protect the Indians from
non-Indians, and restrict the contact between them. 3 There were six
fundamental elements of the Trade and Nonintercourse program. The first was
the protection of the Indians' right to their land by setting boundaries and
restricting "whites" from entering the area. The second was to control land
disposition by refusing to allow private individuals and local governments to
acquire land from Indians without federal permission to do so. The third was to
regulate Indian trade by refusing to allow certain "classes" from trading with
them. The fourth was to regulate liquor flow into Indian country and then ban it
altogether. The fifth element was to ensure punishment of interracial crime.
Promotion of education among the Indians was the final element. 4 With these
goals in mind it is more likely that Congress simply meant to ensure some forum
would exist in which the Indians could file and prosecute grievances against nonIndian incursions, than it is that Congress intended to preempt the Indians' own
jurisdiction. If the Court had applied the proper canon, this construction would
have led it to the conclusion that the jurisdiction was meant to be concurrent. 0 5
The Court also pointed to the Indian Major Crimes Act 0 6 as further proof of
Congress's "unspoken assumption." In the opinion, Rehnquist wrote: "If tribal
courts may try non-Indians... as respondents contend, those tribal courts are
free to try non-Indians even for such major offenses as Congress may well have
given the federal courts exclusive jurisdiction to try members of their own tribe
99. See Johnson & Martinis, supra note 3, at 2.
100. See Act of July 22, 1790, ch. 33, 1 Stat. 137. This statutory policy, without major
change was carried forward in the Act of Mar. 1, 1793, ch. 19, 1 Stat. 329, the Act of May 19,
1796, ch. 30, 1 Stat. 469, the Act of Mar. 3, 1799, ch. 46, 1 Stat. 743, the Act of Mar. 30, 1802,
ch. 13, 2 Stat. 139, the Act of May 6, 1822, ch. 58, 3 Stat. 682, and the Act of June 30, 1834,
ch. 161, 4 Stat. 729. The acts are now codified as amended at 18 U.S.C. §§ 1152, 1154, 1160,
1165 (1994), and at 25 U.S.C. §§ 177, 179-80, 193-94, 201, 229-30, 251, 263-64 (1994).
101. See Maxfield, supra note 3, at 419.
102. See Oliphant,435 U.S. at 210 ("IT]he United States has manifested an equally great
solicitude that its citizens be protected by the United States from unwarranted intrusions on
their personal liberty.").
103. See GETCHES ET AL., supra note 65, at 100 ("The intercourse acts were thus restrictive
and prohibitory in nature-aimed largely at restraining the actions of the whites and providing
justice to the Indians as the means of preventing hostility.").
104. See id. at 99-100.
105. See Maxfield, supra note 3, at 419.
106. 18 U.S.C. § 1153 (1994).
1998]
TRIBAL CRIMINAL JURISDICTION
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committing the exact same offenses."' 7 According to the Court, laws giving
federal courts exclusive jurisdiction over Indians and laws giving concurrent8
jurisdiction over non-Indians could not both have been passed simultaneously.'
Nevertheless, the issue of exclusive jurisdiction is unsettled. 0 9 In United States
v. Wheeler," the Supreme Court mused as to whether the Indian Major Crimes
Act deprives tribal courts of their power over the enumerated offenses,"' but did
not attempt to resolve the question. In Oliphant,the Court pointed out that the
limitation on punishments and fines outlined in the Indian Civil Rights Act'
makes the issue moot."' However, just because it would be impractical for the
tribes to assert jurisdiction over these crimes due to the aforementioned
limitations does not mean that such jurisdiction cannot exist.
The Court in Oliphantrelied on two cases, one district court case and one
Supreme Court case, as well as a dissenting opinion from a Supreme Court case
to bolster its "unspoken assumption" theory. It is questionable whether these
cases can be considered precedent which the Court must follow.
The first case the Oliphant Court relied on, Ex parte Kenyon,"' arose in
Arkansas in 1878. It concluded that tribal courts only had criminal jurisdiction
over Indians." 5 Kenyon, however, involved an offense that had occurred offthe
reservation and in a different state. There was no issue in the case of tribal
jurisdiction for offenses committed on the reservation, so any such reference in
the case to that issue is pure dicta." 6 The Court also gave weight to a 1970
opinion from the Solicitor for the Department of the Interior that ostensibly
affirmed the decision in Kenyon." 7 However, the Oliphant Court dismissed the
fact that the opinion was withdrawn in 1974 but never replaced, simply stating
that no reason was given for the withdrawal." 8 Apparently the Court concluded
that since there was no reason given for the withdrawal, it could simply ignore
it and follow the original opinion. There are two arguments against such a
conclusion. First, the Solicitor is an executive body and a Solicitor's opinion
does not speak for Congress in setting policy in the area of Indian affairs.
Second, there is no reason to believe that an opinion that was withdrawn has any
authoritative force whatsoever.
Exparte Mayfield"9 is also cited in Oliphant for the principle that there is an
"unspoken assumption" within the acts of Congress that tribes do not have
criminal jurisdiction over non-Indians. 20 At first blush this appears to hold some
107. Oliphant,435 U.S. at 203.
108. See Maxfield, supra note 3, at 426.
109. See GETCHES ET AL., supra note 65, at 558.
110. 435 U.S. 313 (1978).
111. See id.at 325 n.22.
112. 25 U.S.C. § 1302(7) (1994).
113. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203 n.14 (1978).
114. 14 F. Cas. 353 (C.C.W.D. Ark. 1878) (No. 7720).
115. See id. at 355.
116. See Maxfield, supra note 3, at 433.
117. See Oliphant,435 U.S. at 200-01.
118. See id at 201.
119. 141 U.S. 107 (1891).
120. See Oliphant,435 U.S. at 203-04.
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merit, but further inspection reveals that such an assumption does not exist, even
implicitly, in the Mayfield case. However, Mayfield did introduce some very
important premises. First, it recognized that tribes retain exclusive jurisdiction
in all civil and criminal cases arising in Indian country where tribal members are
the only parties.' Secondly, it recognized that, under the Indian Country Crimes
Act ("ICCA"), 122 the general federal laws prohibiting crimes and misdemeanors
apply to Indian territory as elsewhere in the United States.,'2 Some of the other
language in Mayfield, read literally, seems to suggest that Congress vested the
United States with exclusive jurisdiction over all interracial crime committed on
the reservation regardless of the defendant's race. 124 The Oliphant Court seized
upon this language to support its "unspoken assumption." However, there is an
exception to the ICCA which states that where any Indian defendant has first
been punished by the local law of the tribe for a minor crime, the federal
government loses its jurisdiction over that defendant.12 Since there is already an
exception in the ICCA for crimes committed by an Indian against another Indian,
the "any Indian" exception must apply to interracial crime. No court opinion
fully discusses the application of this exception, 126 but the exception illustrates
that tribes indeed have concurrent jurisdiction over interracial crime. Therefore,
Mayfield must actually stand for the principle that the tribe and the United States
hold concurrent jurisdiction over interracial crime, since the case addressed the
question as to whether the United States had any jurisdiction at all. As a result,
Mayfield does not stand for the implicit assumption that tribes do not have
criminal jurisdiction over non-Indians, and the OliphantCourt cannot, by relying
on Mayfield, make express that which was not even implicit in the opinion.
The Oliphant Court cited various other authorities in an attempt to support its
holding. 127 Like the cases, however, these are no more convincing and are
precarious building blocks in an already weak foundation. First, the Court was
apparently persuaded by legislation that was never passed. It cited the Western
Territory bill, which was drafted in 1834, as evidence of the implicit conclusion
of Congress that tribes have no jurisdiction over non-Indians. 128 The Court's
discussion of the bill shows most clearly the contradiction between the holding
and reality. The opinion notes that in the bill Congress was careful not to
recognize the tribes' right to criminal jurisdiction over non-Indians, and it quotes
121. See Mayfield, 141 U.S. at 115.
122. Act of May 2, 1890, ch. 182, § 31, 26 Stat. 81, 96 (codified as amended at 18 U.S.C.
§ 1152 (1994)).
123. See Mayfield, 141 U.S. at 115.
124. See id. at 116.
The general object of these statutes is to vest in the courts of the [Indian] nation
jurisdiction of all controversies between Indians, or where a member of the nation
is the only party to the proceeding, and to reserve to the courts of the United
States jurisdiction of all actions to N4hich its own citizens are parties on either
side.
Id. (emphasis added).
125. See 18 U.S.C. § 1152.
126. See COHEN, supranote 5, at 297.
127. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 201-05 (1978).
128. See id. at 202.
1998]
TRIBAL CRIMINAL JURISDICTION
1067
the drafters' intent to protect non-Indians who travel through Indian country.' 29
However, buried in a footnote is the fact that this bill was tabled because
Congress felt that overall the bill was too radical a shift in U.S.-Indian
relations. 3 ' As the Oliphantfootnote itself admits, the bill was submitted several
times but never passed. Conveniently, the Court had no trouble taking the tabled
bill as evidence of congressional intent, despite the fact Congress never passed
it.
Next, on at least one occasion during the nineteenth century, the Attorney
General of the United States opined that tribal criminal jurisdiction "is, inter alia
inconsistent with treaty provisions recognizing the sovereignty of the United
States over the territory assigned to the Indian nation[s] and the dependence of
the Indians on the United States."'' The Court was quick to rely on this to
support its holding in Oliphant.However, only a few years prior to the Attorney
General's 1834 statement, Chief Justice Marshall, in the Worcester and Cherokee
Nation opinions, saw no conflicts between the sovereignty of the United States
and that of the Indian nations except where foreign nations tried to deal directly
with the tribes, or where Congress expressly took the sovereignty from the
Indians through its plenary power. 32 The Court in Oliphant itself conceded the
fact that "Congress never expressly forbade Indian tribes to impose criminal
penalties on non-Indians"'3 either by statute or treaty. Because Congress alone
has plenary power over Indian affairs, and the Attorney General does not speak
for Congress, it then follows that the weight accorded these opinions by the
Court to support its "unspoken assumption" theory is misplaced.
Another authority cited by the OliphantCourt is a 1960 Senate report. 34 The
report speaks of a belief, at the time, that tribal courts were without inherent
jurisdiction to try non-Indians. The source of the belief was the Senate Judiciary
Committee that was considering a bill prohibiting unauthorized entry upon Indian
lands for the purpose of hunting and fishing.' 35 At the very most, this report
reflects the views of one Senate committee and one Department of the Interior
official on the matter of criminal jurisdiction over non-Indians, and cannot be
said to reflect the intent of the entire Congress.' 36 Reliance on this report is
therefore suspect and unconvincing. Considered as a whole, these sources fall
short of signaling an "unspoken assumption" indicating congressional intent to
take away the tribes' jurisdiction over non-Indians.
129. See id. at 201.
130. See id. at 202 n.13.
131. Id. at 199 (characterizing the Attorney General's opinion as expressed in 2 Op. Att'y
Gen. 693 (1834)).
132. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 547 (1832); Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 40 (1831).
133. Oliphant,435 U.S. at 204.
134. See id. at 204 (citing S. RnP. NO. 86-1686, at 2-3 (1960)).
135. See id. at 205.
136. See Maxfield, supranote 3, at 408-09.
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B. Implicit-Loss Theory
Despite the attention which the Oliphant Court gave to the "unspoken
assumption" theory, the Court did not ultimately base its holding on it, although
it afforded it considerable weight in the decision. 37 The Court clearly recognized
that the authorities cited and the reasoning employed in its "unspoken
assumption" theory were insufficient to divest the tribes of their criminal
jurisdiction over non-Indians. Instead, the Court determined that the tribes lost
their criminal jurisdiction over non-Indians due to their status as domestic,
dependent nations.' 38 For this conclusion, the Court looked to the Treaty of Point
Elliott, 39 the Marshall trilogy, 4 Fletcher v. Peck,'4 ' and Exparte Crow Dog.4' 2
However, while the construction the Court relied upon may have had some merit
under congressional policy in place at the time of the Point Elliott Treaty or the
Marshall trilogy, it failed to take into consideration the policy changes which
have arisen since the Dawes and Indian Reorganization Acts.'43
In Oliphantthe Court pointed out that under the Treaty of Point Elliott, the
Suquamish tribe acknowledged their dependence on the federal government.'
Similarly, as described in Part II of this Comment, the Marshall trilog&y stands for
the premise that all tribes are domestic, dependent nations and that the
relationship of the United States to the tribes is that of guardian to ward. The
OliphantCourt reasoned that these two facts show that the Suquamish tribe, and
tribes in general, are under the territorial sovereignty of the United States and
that their exercise of sovereign power may not conflict with the overriding
sovereignty of the United States.' 45
Congressional policy at the time of the Marshall trilogy considered the
boundaries of Indian country to be a barrier which non-Indians could not breach
without permission from the federal goverrniient.'" Therefore the OliphantCourt
was correct in one sense when it asserted that in their treaties with the United
States, the tribes "were in all probability recognizing that the United States
147
would arrest and try non-Indian intruderswho came within their Reservation."'
Such an intrusion was only a crime under federal law, not tribal law, and the
treaty merely recognized this fact. It would therefore follow that during the time
137. See Oliphant, 435 U.S. at 206 ("While not conclusive on the issue before us, the
commonly shared presumption of Congress, the Executive Branch, and lower federal courts
that tribal courts do not have the power to try non-Indians carries considerable weight.").
138. See id. at 207.
139. Treaty Bet~veen the United States and the Dwamish, Suquamish and Other Allied and
Subordinate Tribes of Indians in Washington Territory, Jan. 22, 1855, 12 Stat. 927.
140. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
141. 10 U.S. (6 Cranch) 87 (1810).
142. 109 U.S. 556 (1883).
143. See supra Part II.
144. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206-07 (1978).
145. See id. at 209.
146. See COHEN, supra note 5, at 112.
147. Oliphant,435 U.S. at 207 (emphasis added).
1998]
TRIBAL CRIMINAL JURISDICTION
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of the Marshall trilogy the tribes had no jurisdiction over such non-Indian
intruders since they were not permitted to be there in the first place under federal
law. However, this fact is not enough to imply a loss of jurisdiction for crime
committed by non-Indians who violate tribal law and to whom Congress has
given permission to enter Indian country.
A major flaw in the Court's reasoning is that since the Dawes Act of 1887,148
Congress has removed the barrier and expressly invited non-Indians to enter
Indian country. The premise present in Marshall's day, which excluded nonIndians from having any contact with the Indians and therefore avoided
subjecting non-Indians to tribal law, no longer exists. Furthermore, as discussed
in the previous section, the tribes' criminal jurisdiction over non-Indians has
never been expressly or implicitly taken away by Congress, and under Worcester
v. Georgia,the tribes retain the right to control their affairs within their own
borders.149 Considering the changes in congressional policy and the fact that
tribes maintain their sovereign powers unless Congress takes them away, their
dependent status alone is insufficient to imply they have lost criminal jurisdiction
over non-Indians.
At the very most, the tribes' dependent status inherently limits their ability to
alienate land and form treaties with foreign powers and third parties.'s Any
action further diminishing tribes' internal sovereign power must be taken by
Congress."' The OliphantCourt relied on language from Fletcherv. Peck's2 to
undermine this fact and broaden the nature of the limitations on tribal
sovereignty due to their dependent status.s 3 The Fletcherlanguage in essence
says that Indians' sovereignty is limited to governing only themselves, which
would preclude them from governing non-Indians.'54 The Court characterized this
language as being part of a concurring opinion"15 when in fact Justice Johnson's
view had no precedential value, because, although concurring in the result,
Johnson dissented from the majority's reasoning." 6 Yet, the Court has chosen to
follow the view of one justice over all other Supreme Court precedent in the area
of Indian law. 5 7
Finally, in support of its holding, the Oliphant Court relied on Ex parte Crow
Dog,' which held that criminal jurisdiction over Indians was exclusively in the
tribe. The Court's holding of exclusivity in Crow Dog was overturned when
148. Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331358 (1994)).
149. See Frickey, supra note 42, at 396-97.
150. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 573 (1823).
151. See COHEN, supra note 5, at 241-42.
152. 10 U.S. (6 Cranch) 87 (1810).
153. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,209 (1978) (citing Fletcher, 10
U.S. (6 Cranch) 87).
154. See id. (citing Fletcher, 10 U.S. (6 Cranch) at 147 (Johnson, J., concurring in the
result)).
155. See id.
156. See Fletcher, 10 U.S. (6 Cranch) at 143 (Johnson, J., concurring in the result).
157. See Maxfield, supranote 3, at 438.
158. 109 U.S. 556 (1883).
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Congress enacted the Indian Major Crimes Act. 59
' The OliphantCourt relied on
Crow Dog to find exclusivity in the tribes, using it to illustrate why Indians
should not have criminal jurisdiction over non-Indians.' 6 The reason, the Court
wrote, is because the Indians sought to extend their law
"over aliens and strangers; over the members of a community separated by
race [and] tradition.... from the authority and power which seeks to impose
upon them the restraints of an external and unknown code .... It tries them,
not by their peers, nor by the customs of their people, nor the law of their
land but by... a different race, according to the law of a social state of which
they have an imperfect conception." 6'
This nineteenth-century depiction of the degree of alienation between Indians
and non-Indians is unacceptable. While it is true that in the nineteenth century
the boundary of Indian country represented a barrier dividing alien cultures
which was not to be breached by non-Indians without the permission of the
federal government, 62 in the twentieth century this barrier has ceased to exist.
The boundary of Indian country in the twentieth century is respected as the
physical limit of tribal sovereignty on the one hand and state sovereignty on the
other. 63 If an Indian leaves the boundary of Indian country and by doing so
places herself outside the limit of tribal authority, the tribe loses jurisdiction over
her and the state gains jurisdiction. If she then commits a crime, the state exerts
its authority and prosecutes her in state court. Likewise, there is no reason to
believe that a non-Indian who leaves the confines of the state, enters Indian
country, puts herself within the boundary of tribal authority, and commits a crime
there should not be subject to the jurisdiction of the tribe. In fact, many nonIndians actually live in Indian country at the behest of Congress. In light of this
fact, it is difficult to accept the OliphantCourt's argument that tribal culture is
so alien to non-Indians that they must be shielded from tribal criminal
jurisdiction. The tribes are territorial sovereigns, and as such, they must have the
power to protect their territory and enforce their laws against any offender who
violates those laws. Despite their dependent status, they have retained the power
to manage their internal affairs,"6 and criminal jurisdiction over non-Indians is
essential to managing those affairs. To deny this is to deny reality, yet that is
precisely what the Supreme Court has done. With states unwilling and the federal
government unable to enforce tribal laws for all crimes committed by nonIndians,'65 it is time for Congress to finally step in and recognize that tribes have
retained criminal jurisdiction over non-Indians.
159. Title 18, Crimes and Criminal Procedure, ch. 645, § 1153, 62 Stat. 683, 758 (1948)
(codified as amended at 18 U.S.C. § 1153 (1994)).
160. See Oliphant,435 U.S. at 210-11 (quoting Crow Dog, 109 U.S. at 571).
161. Id. (alteration and first and last omission in original; second omission added) (quoting
Crow Dog, 109 U.S. at 571).
162. See COHEN, supra note 5, at 120.
163. See id. at 27.
164. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 553-54 (1832).
165. See supratext accompanying notes 11-13.
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TRIBAL CRIMINAL JURISDICTION
IV. LEGISLATING CRIMINAL JURISDICTION OVER NONINDIANS
Concluding that the Court's outcome in Oliphant was wrong is not enough.
The scathing admonitions leveled at the opinion and its resulting legal framework
have bounced off the conscience of the current Court; it is clear that the Court
will not be persuaded to change its position. In fact, recent decisions such as the
1990 decision in Duro v. Reina'66 have further chipped away at criminal
jurisdiction and Indian sovereignty in general.' 67 Fortunately, Congress came to
its senses after the Duro case and immediately enacted legislation changing the
law Duro established.' 68 Some opine that the Court and Congress are on the verge
of a power struggle in which the Court is attempting to usurp Congress's
exclusive power over Indian affairs. 69 The traditional roles of Congress and the
Court have truly been reversed, with Congress now in the role of protecting tribal
sovereignty and the Court in the role of antagonist.
What can be done to solve the problems that are a direct result of the Oliphant
decision? Since Congress has shown willingness to take steps to restore the
criminal jurisdiction the Court has taken from the tribes in some instances,'""
perhaps it is time for Congress to put its plenary power to use and enact
legislation recognizing the tribes' criminal jurisdiction over non-Indians.
Congress could at least restore criminal jurisdiction over non-Indians for
misdemeanors and give tribes a fighting chance to maintain law and order on the
reservations.
Congress could do this in a two-pronged piece of legislation. The first prong
would recognize the tribes' right to territorial criminal jurisdiction over nonIndians and nonmember Indians who commit crimes on the reservation. The first
prong would also set the conditions under which such recognition would be
granted. The second prong would establish the United States Court of Indian
166. 495 U.S. 676 (1990) (holding that an Indian tribe cannot exercise criminal jurisdiction
over a defendant of diverse tribal affiliation).
167. See generally County of Yakima v. Confederated Tribes and Bands of the Yakima
Indian Nation, 502 U.S. 251 (1992) (holding that the county may impose an ad valorem tax on
reservation land owned by tribal members); Brendale v. Confederated Tribes and Bands of the
Yakima Indian Nation, 492 U.S. 408 (1989) (holding that the Yakima Nation does not have
the authority to zone land in closed areas of the reservation owned in fee simple by nonIndians); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (holding that the state
may impose severance taxes on oil and gas produced on the reservation, and thereby reduce the
value of a lease on the reservation, even though the tribe had already taxed that production).
168. See 25 U.S.C. §§ 1301-1303 (1994) (outlining the general constitutional rights of
Indians).
169. See Alex Tallchief Skibine, Duro v. Reina and the LegislationThat OverturnedIt: A
Power Play ofConstitutionalDimensions, 66 S. CAL. L. REv. 767, 771 (1993).
170. Congress's 1990 amendment of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303,
is one example.
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Affairs 71 as the reviewing body for all criminal decisions handed down in tribal
court where the defendant is a non-Indian. This would strengthen the
constitutional footing of the 1990 legislation enacted in response to Duro,
because that legislation would no longer subject only nonmember Indians to
general tribal jurisdiction from which non-Indians are exempt." It also would
be a major boost for law-enforcement efforts on the reservations.
This Part presents a potential framework for Congress to follow in enacting
such legislation. The proposed statutory scheme is limited enough to meet the
congressional concerns over protecting the rights of non-Indians, but effective
enough to preserve the tribes' territorial jurisdiction over non-Indians and
nonmember Indians, except in those areas where Congress has expressly taken
it away. The primary aim of such legislation is to put the enforcement of
misdemeanor and everyday crime back into the hands of the tribes.
A. PartI: Jurisdiction
As a model for the proposed legislation, I have adapted the language of the
original Wheeler-Howard bill which Congress considered and modified before
passing the Indian Reorganization Act of 1934. The following proposed statutes
are all modeled on this language, but have been modified to meet the specific
goals addressed by this Comment.
§ 1. It is hereby declared that the purpose of this statute is to conform the
current state of tribal criminal jurisdiction to the policy of Congress that
tribes have the right of local self-government on the Reservations. It is in the
interest of the overriding sovereignty of the United States to prevent and
deter a state of lawlessness in any territory within its borders. It is also
declared that the appropriate backdrop of sovereignty for this statute shall not
include the Dawes Act, 25 U.S.C. §§ 331 to 358, which is considered to be
repealed for purposes of determining criminal jurisdiction.
Putting this general-purpose clause into the statute itself may seem extraneous,
and emphasizing the repeal of the Dawes Act for purposes of this statute may
seem strange,7 7 but due to the Supreme Court's activism in the field of Indian
law, any statute must have internal safeguards to prevent courts from interpreting
it in a way Congress did not intend. The Supreme Court in recent cases7 has
171. See Hearings,supra note 77, at 2436. The committee notes from February 12, 1934,
contain the original Wheeler-Howard bill in its entirety, and section IV proposes a Court of
Indian Affairs, the model for a court later proposed in this Comment.
172. See Skibine, supranote 169, at 784.
173. Title 25 U.S.C. § 461 (1994), implicitly repeals the Dawes Act: "On and after June 18,
1934, no land of any Indian reservation, created or set apart by treaty or agreement with the
Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty
to any Indian." Id. However, the Supreme Court still invokes the Dawes Act as an "appropriate
backdrop of sovereignty" when it suits its purposes. See, e.g., County of Yakima v.
Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992). To avoid
this, the statute must expressly forbid doing so.
174. See County of Yakima, 502 U.S. at 259. Justice Scalia found that § 6 of the Dawes Act
is no longer on the books, but § 5 is still on the books. The subject in the case was taxation
rather than criminal jurisdiction, but the implication is that the Court will use the provisions
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invoked the Dawes Act to curb tribal sovereignty despite the fact that Congress
suspended the Dawes Act when it enacted the Indian Reorganization Act in
1934. 7' For any statute to be effective the Court must be restrained from using
provisions of the Dawes Act to limit tribal sovereignty. The "overriding
sovereignty" clause is also necessary because the Court in Oliphant stated that
any concerns of the overriding sovereignty of the United States could trump
tribal sovereignty. Congress can defuse attempts by the Court to invoke this
reasoning and limit the scope of the statute by addressing the overriding
sovereignty of the United States in the statute.
§ 2. Congress hereby recognizes that tribal courts have retained their
territorial jurisdiction over all non-Indians and nonmember Indians for all
offenses committed on the Reservations, in violation of all local ordinances,
and shall have the power to render and enforce judgments, and punish
violations of such by fine not exceeding $5000, or imprisonment of not more
than one year, or both. 76 Provided, however, that the tribal courts are bound
by the Indian Civil Rights Act, practice judicial independence, and that nonIndians living on the Reservations are entitled to serve on tribal-court juries
for cases where the defendant is a non-Indian.
By recognizing the tribes' right to territorial jurisdiction over non-Indians and
nonmember Indians instead of granting it to them, Congress does two things. It
defines the United States' relationship with the tribes and thus legitimizes such
tribal criminal jurisdiction. Furthermore, it undermines the "unspoken
assumption" argument from Oliphant by expressing a view to the contrary.
Section 2 also puts limitations on the tribes in rendering and enforcing
judgments. The "$5000, or imprisonment of not more than one year" language
reaffirms limitations already imposed on the tribes by the Indian Civil Rights
Act, 77 and ensures there will be no ambiguity on this point. Additionally, to ease
the fears about subjecting non-Indians and nonmember Indians to a "foreign"
criminal judicial system, Congress can condition the recognition of tribal
criminal jurisdiction on certain enumerated protections. First, tribal courts must
be bound by the Indian Civil Rights Act. The Act is a statutory bill of rights very
similar to the Bill of Rights in the U.S. Constitution.' 78 If non-Indians are going
to receive the same protections in tribal courts as they would in federal courts,
then there is one less argument against tribes exercising criminal jurisdiction
over them.
Next is the requirement of judicial independence. This is necessary because,
while most tribes have separate lawmaking and judicial bodies, some have a
system in which they are a combined body. Those who write the laws are the
of the Dawes Act to curb tribal sovereignty if allowed to go unchecked.
175. See COHEN, supra note 5, at 147-49.
176. See H.R. 7902, 73d Cong. § 4(d) (1934); Hearings,supra note 77, at 3.
177. Title 25 U.S.C. § 1302(7) states that no Indian tribe shall "impose for conviction of any
one offense any penalty or punishment greater than imprisonment for a term of one year and
a fine of $5,000, or both."
178. The Indian Civil Rights Act contains all of the provisions in the Bill of Rights except
those contained in the Second, Third, Ninth, and Tenth Amendments. It also includes a
provision similar to the Sixteenth Amendment, an ex post facto provision, and habeas corpus.
See id. §§ 1301-1341.
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same people who interpret the laws, 79 and having such a requirement will
eliminate separation-of-powers concerns. If those tribes with a combined system
do not want to change their system, then they would more than likely be required
to set up a separate court in which to prosecute non-Indian defendants, or the
proposed Court of Indian Affairs could possibly be designed to take jurisdiction
over these cases as a neutral and detached body. This is a compromise aimed at
eroding opposition to the proposed legislation and eliminating any arguments
against recognizing tribal criminal jurisdiction over non-Indians generally,
because of tribes who operate under a combined legislative and judicial system.
Finally, opposition to legislation adopting the "subject to a foreign judicial
system" argument is weakened if non-Indian residents of the reservations are
entitled to sit on tribal-court juries for cases in which the defendant is a nonIndian. This final requirement eliminates any possible comparison between an
Indian tribe and that of a foreign country exercising jurisdiction over a United
States citizen. Considering the domestic, dependent status of the tribes, the latter
comparison is a weak one anyway, especially in light of the provisions of the
Indian Reorganization Act and Indian Civil Rights Act. The suggested statute
puts this argument to rest once and for all. Furthermore, any residual fears by
detractors on this front are likely to be put to rest by the creation of the Court of
Indian Affairs as set forth in Part II of the proposed legislation. 80
§ 3. Congress, in addition, recognizes that tribal courts have criminal
jurisdiction over offenses committed on the Reservations by non-Indians
against other non-Indians. Providedthat, no person shall be punished for any
offense for which prosecution has already begun in any state court in which
the Reservation in question is located.'
The purpose of this section is to limit the McBratney rule which gave the states
exclusive jurisdiction over all crime committed by non-Indians on the
reservations against other non-Indians.' 8 2 This provision makes the jurisdiction
concurrent instead of exclusive in the state, but still gives states exclusivity if
they prosecute first. This too is a compromise in that it expands the tribes'
criminal jurisdiction, but does not entirely divest the state of its power to try
these cases. It is a necessary compromise in order to ease the fear of opponents
who would not favor such wholesale reversal of the McBratney rule. The
addition of concurrent jurisdiction makes sense in light of the overall goal of
combating lawlessness on the reservations committed by groups who go
unpunished under the current system. It also makes sense considering that
179. See Volk, supra note 3, at 256 (discussing "traditional tribal courts whose tribal
governing body, acting as dispute resolver, enforces unwritten tribal rules and customs").
180. See infra notes 187-94 and accompanying text.
181. See H.R. 7902; Hearings,supranote 77.
182. United States v. McBratney, 104 U.S. 621 (1882).
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tourism is becoming a major part of the growing economies of the tribes,'83 and
84
the occurrence of non-Indian to non-Indian crime is bound to be on the rise.'
§ 4. The recognition of tribal criminal jurisdiction outlined in the preceding
sections in no way diminishes, repeals, or abridges the criminal jurisdiction
of the federal government as set forth in the Indian Major Crimes Act and the
Indian Country Crimes Act, 18 U.S.C. §§ 1152 to 1153, or any other
provision under the laws of the United States, nor does such recognition
encompass the power to prosecute and try non-Indians and nonmember
Indians for violating federal laws.
This final section expressly indicates that the status quo of federal jurisdiction
shall remain unchanged. Federal law-enforcement agencies and federal courts
will still handle all major crimes enumerated in the Indian Major Crimes Act, and
therefore the provision ensures that the empowerment of the tribes over nonIndians and nonmember Indians will be limited to enforcing misdemeanors and
local ordinances only. Even assuming that the provision recognizes concurrent
jurisdiction, the constraints on imposing large fines or long prison terms found
in section 2 make it unlikely that the tribes will assert jurisdiction over major
crimes. Section 4 is also meant to allay separation-of-powers concerns by
refusing to recognize tribal jurisdiction over violations of federal criminal law
committed by non-Indians and nonmember Indians.'85 Through this language,
Congress would avoid infringing on the power of Article III courts. Since tribal
codes were not enacted by the U.S. Congress, and the violations therefore do not
"arise under the laws of the United States," Congress would not be overstepping
its constitutional authority if it recognized the right of tribal courts to enforce
their own laws." 6
B. Part1I: The Court ofIndian Affairs
In 1934, part of the original Wheeler-Howard bill, now known as the Indian
Reorganization Act," 7 contained an additional provision that was never adopted.
This provision established a Court of Indian Affairs. This was a court of review
that was to take the place of federal district courts in matters arising from Indian
affairs. It was to have broad civil' and criminal jurisdiction. Reviving the idea
of creating such a court complements the proposed recognition of tribal criminal
jurisdiction. With such a reviewing body in place, created under the auspices of
the federal government, it is difficult to argue that non-Indians and nonmember
183. See Henry S. Noyes, A "Civil" Method of Law Enforcement on the Reservation: In Rem
Forfeitureand Indian Law, 20 AM. INDIAN L. REv. 307, 308 (1996). Much of the tourism is
due to the growing Indian gaming craze that is sweeping many of the reservations.
184. As mentioned supra in the text accompanying note 22, such statistics have not been
compiled and can only be found by contacting the few individual state jurisdictions that have
actually made arrangements with the tribes to handle these cases.
185. See Skibine, supra note 169, at 803.
186. See id.
187.25 U.S.C. §§ 462-466, 470-479 (1994).
188. A discussion of whether the court should have broad jurisdictional powers, including
civil jurisdiction, is not beyond the range of possibility, but it is beyond the scope of this
Comment.
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Indians are being subjected to a foreign judicial system." 9 By adding this court
of review to its recognition requirements, Congress would strike a balance
acceptable to those who fear prejudice against non-Indians and nonmember
Indians on the part of the tribal courts.
1. Establishing the Court
§ 1. There shall be a United States Court of Indian Affairs, which shall
consist of a chief judge and four associate judges, each of whom shall be
appointed by the President, by and with the advice and consent of the Senate.
At no time shall the court consist of fewer than two Native-American judges.
§ 2. (A) The authority of the court may be exercised either by the full court
or one or more judges duly assigned by the court to sit in a particular locality
or to hold a special term for a designated class of cases. 9 Providedthat the
assigned judges consist of no fewer than one Native American. (B) The issue
of when the full court must rule in a specific matter is a determination which
shall be made as an internal administrative function of the court.
The text in section 1 establishing the Court of Indian Affairs resembles the
language of the original Wheeler-Howard bill,' 9' but adds that there shall be no
fewer than two Native-American judges sitting on the court at any time. Since
this reviewing body will be interpreting tribal law, it is essential that it consist,
at least partially, of Native Americans. The number set forth in the statute is a
minimum number and it would be well within the scope of such a statute for the
President to appoint more than two Native-American judges to the court. This
construction is meant to minimize racial prejudice and its influence on the court's
decisions.
2. Jurisdiction
§ 3. The Court of Indian Affairs shall have appellate jurisdiction over all
criminal cases arising under the laws or ordinances of a chartered Indian
community, in which a non-Indian or nonmember Indian is the defendant.
§ 4. All jurisdiction heretofore exercised by the United States district courts
by reason of the fact that a case involves facts constituting any of the grounds
to jurisdiction enumerated in the preceding section, is hereby terminated,
reserving, however, to such district courts complete jurisdiction over all
pending suits and over all proceedings ancillary and supplementary thereto) 92
§ 5. The Court of Indian Affairs may order the removal of any cause falling
within its jurisdiction as set forth above, from any court of any state or any
Indian community in which such cause may have been instituted.' 93
189. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,211 (1978). Remember that this
argument was fundamental to the Court's reasoning in arriving at the holding.
190. See H.R. 7902, 73d Cong. § 2 (1934); Hearings,supra note 77, at 3.
191. See H.R. 7902.
192. See id. § 4.
193. See id. § 5.
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§ 6. (A) The standard of review for an appeal to the Court of Indian Affairs
shall be de novo in reviewing issues of law, and a reasonable basis standard
shall apply to reviewing issues of fact. (B) In conducting an appeal, the
reviewing court shall respect the spirit of tribal law against which the offense
was committed, and such an appeal shall be governed by the traditional
canons of Indian law.
Considering the limited purpose of this Comment, including more expansive
jurisdiction in the Court of Indian Affairs under section 3 seems impractical.
proposed
However, it is important to note that the original Wheeler-Howard bill
94
much more expansive jurisdiction both in criminal and civil cases.
Section 4 divests the federal district courts ofjurisdiction in "all criminal cases
arising under the laws or ordinances of a chartered Indian community,"' 95 and
vests such jurisdiction in the Court of Indian Affairs. Putting the appellate
decisions in the hands of one body leads to more impartial administration of
justice and designates a reviewing body which is not associated with a local tribe
as the sole body monitoring the decisions of tribal courts prosecuting nonIndians. It also ensures that the reviewing court is one which is familiar with
tribal and federal Indian law.
Section 6 establishes the appellate standard of review over tribal-court
decisions. Since review of most criminal cases is de novo on issues of law, the
Court of Indian Affairs should be no different. This compromise would allay the
fears of non-Indian defendants concerned that they would not receive a fair trial
in tribal court, and would let such defendants know that the reviewing court's
hands are not tied to a stringent standard on issues of law. Some tribes will
undoubtedly be displeased by this standard and see it as an intrusion on tribal
courts. However, Congress is unlikely to pass legislation recognizing criminal
jurisdiction that does not provide for some protection of non-Indians' rights. The
alternative is to continue to live with Oliphant,which is far more intrusive on the
power of tribal courts.
3. Other Powers and Procedures
In establishing the rest of the court's powers, the statute needs to include
sections in which to promulgate rules of procedure,' 96 institute an en banc
appeals process,' 97 determine the rights of the accused in Court of Indian Affairs
proceedings,' 98 recognize the right to trial by jury and other constitutional
rights,' 99 enumerate the court's incidental powers,2 0 and subject the court's
decisions to review by the U.S. Courts of Appeal and the Supreme Court.20 ' Title
IV of the original Wheeler-Howard bill serves as an excellent model and many
194. See id. §3.
195. See id.
196. See id. § 7.
197. See id. § 8.
198. See id. §9.
199. See id. § 10.
200. See id. § 13.
201. See id§ 15.
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of its provisions could be adopted wholesale for the purpose of establishing the
rest of the court's structure, while some would need minor alterations to keep
within the limited jurisdiction proposed above. 2
CONCLUSION
For twenty years the tribes have lived with the Oliphant decision and its
effects. Due to this decision, many non-Indians who commit everyday
misdemeanor offenses on the reservations are often never prosecuted. The hands
of the tribal police are tied, and together with the increasing reliance of tribal
economies on tourism, which increases the number of non-Indians visiting the
reservations, a state of lawlessness and self-help justice has resulted on many
reservations.
The Oliphantdecision has been attacked time and time again by scholars in the
field of Indian law, but the Supreme Court has turned a blind eye to academia,
choosing instead to advance its own agenda against tribal sovereignty. Recent
cases such as Yakima,2 3 Duro,20 4 Brendale,20 5 and Cotton Petroleum 2 6 make it
clear that criticism alone is not going to deter the Court from following its
current course.
It is time for Congress to use its traditional plenary power over Indian affairs
to enact legislation that recognizes tribal rights to exercise criminal jurisdiction
over non-Indians, protects tribal sovereignty, helps to remedy the current lawless
behavior by non-Indians living on and visiting reservations, and finally puts an
end to the Oliphant decision.
202. Many of the provisions are constructed with civil and federal jurisdiction in mind, but
the jurisdiction enumerated in section 3 of the legislation proposed in this Comment only
contemplates limited criminal jurisdiction.
203. County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502
U.S. 251 (1992).
204. Duro v. Reina, 495 U.S. 676 (1990).
205. Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408
(1989).
206. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989).